In a July 7, 2015 Technical Interpretation (2014-0552711E5, Bordeleau, Francis), CRA was asked whether a LOI to purchase a corporation could result in deemed control pursuant to Paragraph 251(5)(b), for the purposes of:

  • the definition of Canadian-Controlled Private Corporation (CCPC) (Subsection 125(7)); and
  • determining related party status (Subsection 251(2)).

CRA first noted that this deeming provision does not deem any person to cease control of the corporation. The provision only widens the notion of control.

CRA then summarized the manner in which they would assess whether a specific LOI would result in the application of Paragraph 251(5)(b), noting that this would first require determining whether the LOI is a legal contract between the parties, which is a question of fact and contract law on which CRA could not comment.

Assuming the LOI is a legal contract, Paragraph 251(5)(b) would apply if it provides an absolute or contingent right, whether immediate or at some time in the future, to:

(a) acquire shares of the corporation; 
(b) cause shares held by other shareholders to be redeemed, acquired or cancelled by the corporation; 
(c) control the voting rights of shares of the corporation; or, 
(d) reduce voting rights held by other shareholders.

Where the ability to exercise a right set out above is contingent on the death, bankruptcy or permanent disability of an individual, that right is not considered under this provision. Otherwise, the holder of the right is deemed to be in the same position to control the corporation as if the rights had been exercised.

For further information see VTN Monthly Tax Update Seminar, Issue No. 411